L-1 Visa: An Overview

7/23/2019 L-1 Visa: An Overview

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INTRA-COMPANY TRANSFEREES

L-1 Visa: An overview

Sadanand Nai

Bengaluru


http://slidepdf.com/reader/full/l-1-visa-an-overview 2/32Sadanand Naik

The L nonimmigrant category was created by Public Law

91-225, enacted on April 7, 1970 to permit internationa

companies to temporarily transfer qualified employees to

the United States for the purpose of improvin

management effectiveness, expanding U.S. exports, and

enhancing competitiveness in markets abroad.

As per the USCIS statistics, issuance of Non-immigran

Visas was grown to 7,507,939 in 2011 from 6,444,285 in

2007 under different non immigrant categories. However

the NIV’s issued to Indians was declined to 554,267 in

2011 from 653,060 in 2007. The USCIS has approved

147,677 petitions under L-1 category in 2011. 56,817 L-

petitions were approved to Indians in 2011.

The L1 visa classification is divided into two separate visa

classifications, L1-A for managers and executives and L1-

for an employee in a specialized knowledge capacity

The L-1A nonimmigrant classification enables a U.S

employer to transfer an executive or manager from one

of its affiliated foreign offices to one of its offices in the

United States. It also enables a foreign company which

does not yet have an affiliated U.S. office to send an

executive or manager to the United States with the

purpose of establishing one.

The L-1B nonimmigrant classification enables a U.S

employer to transfer a professional employee wit

specialized knowledge relating to the organization’

interests from one of its affiliated foreign offices to one oits offices in the United States. This also enables a foreign

company which does not yet have an affiliated U.S. office

to send a specialized knowledge employee to the United

States to help establish one.

CONTENTS

Introduction

Definitions

Intracompany Transferees:

Blanket Petition


L-1A Manager or Executive


L-1A New Office (First Year)

Intracompany Transferee:

L-1A New Office –

Extension after the First

Year


http://slidepdf.com/reader/full/l-1-visa-an-overview 3/32Sadanand Nai

About the Author: Sadanand Naik is a

Law graduate from Mangalore University

(2005), in Karnataka, India, and Upon

graduation, Mr.Sadanand Naik served as

a Assistant Lawyer for the Rajan D.Naik,

Advocate Vasco-Da-Gama, Goa in India.

Mr. Sadanand Naik then served as the

Assistant Lawyer for the AdvocateM.M.Jalisatgi, Honavar. Now he works as

the Team Lead for one of the Leading

LPO in Bangalore.

Disclaimer: All images belong to their respective

owners. No copyright infringement intended. This

book is made for educational purpose only. If you

would like something to be removed please send

an e-mail to [email protected]

An L-2 visa enables to enter the United States by the dependen

spouse and unmarried children under 21 years of age of qualified L

1 visa holders. If the family members are already in the Unite

States, they can seek change of status to L-2 classification. Spouse

of L-1 workers may work if the application for work authorization i

approved. Dependent child is allowed to study in the US under L-

visa. However, once he/she turns to 21 year age, they need see

change of status to F-1 to continue their study.

Application to an L-1 visa begins with the filing of a petition with

the USCIS. After approval of the petition, beneficiary may apply fo

visa issuance at a consulate or embassy of the US in the country

having jurisdiction over their residence.

If the L-1B employee is promoted to the position of manager o

executive, employee may apply for change status with amende

petition to L-1A within six month of expiration of L-1B.

L-1A is initially granted for 3 years and extendible twice for period

of two years each. And L-1B is initially approved for 3 years and

extendable once for two years. L-2 visa is valid for the duration o

the spouse's L1 visa. Qualified employees entering the United

States to establish a new office are allowed a maximum initial sta

of one year.

8 CFR PART 214 (l) and 9 FAM 41.54 deals with the intracompan

transferees.



Definitions:

Intra-Company Transferee: 8 CFR PART 214.2(l)(1)(ii)(A)

“Intra-company transferee” means an alien who, within three years preceding the time of his or her application fo

admission into the United States, has been employed abroad continuously for one year by a firm, corporation, or othe

legal entity or parent, branch, affiliate, or subsidiary thereof, and who seeks to enter the United States temporarily i

order to render his or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof, in capacity that is managerial, executive, or involves specialized knowledge.

Qualifying Organization: 8 CFR PART 214.2(l)(1)(ii)(G))

“Qualifying organization” means a U.S. or foreign firm, corporation, or other legal entity which:

(1) Meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate, or subsidiary

(2) Is or will be doing business (engaging in international trade is not required) as an employer in the United States and in

at least one other country, directly or through a parent, branch, affiliate, or subsidiary for the duration of the alien’s sta

in the United States as an intra-company transferee; and

(3) Otherwise meets the requirements of INA 101(a)(15)(L).

Parent: 8 CFR PART 214.2(l)(1)(ii)(I))

“Parent” means a firm, corporation, or other legal entity, which has subsidiaries. Any business entity, which ha

subsidiaries, is a parent. However, a subsidiary may own other subsidiaries and also be a parent, even though it has an

ultimate parent.

Branch: 8 CFR PART 214.2(l)(1)(ii)(J))

“Branch” means an operating division or office of the same organization housed in a different location. Any such office o

operating division, which is not established as a separate business entity, is considered a branch.

Subsidiary: 8 CFR PART 214.2(l)(1)(ii)(K))

a. “Subsidiary” means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly:

(1) More than half of the entity and controls the entity; or

(2) Half of the entity and controls the entity; or

(3) 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or

(4) Less than half of the entity, but in fact controls the entity.

b. The 50-50 joint venture can be owned and controlled by only two legal entities; all other combinations of a join

venture do not qualify as a subsidiary. A contractual joint venture does not qualify as a subsidiary. A parent may own les

than half of the entity but have control because the other stock is widely dispersed among minor stockholders; fo

example, when an individual or company acquires sufficient shares of a publicly held company to be able to nominate and

elect the board of directors.



Affiliate: 8 CFR PART 214.2(l)(1)(ii)(L))

a. “Affiliate” means:

(1) One of two subsidiaries, both of which are owned and controlled by the same parent or individual; or

(2) One of two legal entities owned and controlled by the same group of individuals, each individual owning an

controlling approximately the same share or proportion of each entity; or

(3) In the case of a partnership that is organized in the United States to provide accounting services along with manageria

and/or consulting services and that markets its accounting services under an internationally recognized name under a

agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms,

partnership (or similar organization) that is organized outside the United States to provide accounting services must be

considered to be an affiliate of the U.S. partnership if it markets its accounting services under the same internationall

recognized name under the agreement with the worldwide coordinating organization of which the U.S. partnership is also

a member.

b. Subsidiaries are affiliates of each other. The affiliate relationship arises from the common ownership and control o

both subsidiaries by the same legal entity. Affiliation also exists between legal entities where an identical group oindividuals owns and controls both businesses in basically the same proportions or percentages. Associations betwee

companies based on factors such as ownership of a small amount of stock in another company, exchange of products o

services, licensing or franchising agreements, membership on boards of directors, or the formation of consortiums o

cartels do not create affiliate relationships between the entities for L purposes.

Relationship between Petitioner and Other Business Entities

For L classification purposes, ownership and control are the factors, which establish a qualifying relationship between a

petitioner and other business entities.

Both the U.S. and foreign businesses must be legal entities. In the United States, a business is usually in the form of a

corporation, partnership, or proprietorship.

“Ownership” means the legal right of possession with full power and authority to control. “Control” means the right an

authority to direct the management and operations of the business entity.

Managerial Capacity: 8 CFR PART 214.2(l)(1)(ii)(B))

“Managerial capacity” means an assignment within an organization in which the employee primarily:

(1) Manages the organization, or a department, subdivision, function, or component of the organization;

(2) Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essentia

function within the organization, or a department or subdivision of the organization;

(3) Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leav

authorization) if another employee or other employees are directly supervised. If no other employee is directl

supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and



(4) Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A

first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of his or her supervisory dutie

unless the employees supervised are professional.

Executive Capacity: 8 CFR PART 214.2(l)(1)(ii)(C))

“Executive capacity” means an assignment within an organization in which the employee primarily:

(1) Directs the management of the organization or a major component or function of the organization;

(2) Establishes the goals and policies of the organization, component, or function;

(3) Exercises wide latitude in discretionary decision-making; and

(4) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders o

the organization.

Specialized Knowledge: 8 CFR PART 214.2(l)(1)(ii)(D))

“Specialized knowledge” means special knowledge possessed by an individual of the petitioning organization‟s produc

service, research, equipment, techniques, management, or other interests and its application in international markets, o

an advanced level of knowledge or expertise in the organization‟s processes and procedures.

Specialized Knowledge Professional: 8 CFR PART 214.2(l)(1)(ii)(E))

“Specialized knowledge professional” means an individual who has specialized knowledge as defined above and is member of the professions as specified in INA 101(a)(32).

New Office: 8 CFR PART 214.2(l)(1)(ii)(F))

“New office” means an organization, which has been doing business in the United States through a parent, branch

affiliate, or subsidiary for less than one year.



Intracompany Transferees: Blanket Petition

A blanket petition simplifies the petitioning process for employers who frequently request intracompany transferees. A

approved blanket confirms that a qualifying relationship exists within Petitioner Company. After blanket approval, any o

petitioner qualifying entities may petition to transfer workers to the United States in L-1A or L-1B status. Those petitions

however, will only examine the beneficiaries’ eligibility, and not the company’s pre-approved qualifying relationships.

Approval of blanket L petition does not guarantee that an employee will be granted L-1A or L-1B classification. It does

however, provide the employer with the flexibility to transfer eligible employees to the United States quickly and witshort notice without having to file an individual petition with USCIS. In most cases, once the blanket petition has bee

approved, the employer need only complete Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, and send

abroad to the employee along with a copy of the blanket petition Approval Notice and other required evidence, so that h

or she may present it to a consular officer. The Consular Officer will stamp on the 2 sets of I-129s, which they submit a

the time of the interview.

As per the visa applications under Blanket L petition in India is concerned, the U.S consulate office at Chennai was made

sole consular post in the country to receive and process blanket L-1 category visas with effective from December 1, 2011.

However, other U.S embassies in India will accept applications based on Individual L petitions.

Requirements for an Initial Blanket Petition

Blanket petitions must show evidence regarding petitioner’s qualifying organizations. Qualifying relationships with

petitioner organization may occur between branches of the same employer, or amongst parent companies, affiliates, o

subsidiaries.

USCIS may approve petitioner and some or all of petitioner’s parents, branches, subsidiaries, and affiliates as qualifyin

organizations if:

Petitioner and any other entities named in the petition are engaged in commercial trade or services; and

Petitioner has an office in the United States that has been doing business for one year or more;

Petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates;

Petitioner and the other qualifying organizations have:

At least 10 previous approvals for L-1 managers, executives, or specialized knowledge professiona

during the previous 12 months.

U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or

A U.S. work force of at least 1,000 employees;

Following issues must be properly addressed when preparing the Blanket petition:

1. Whether petitioner and the other entities named in the petition are engaged in commercial trade or services?

2. Whether petitioner has an office in US doing business for one year or more?

3. Whether petitioner has three or more domestic and Foreign Branches, Subsidiaries, or Affiliates?



Whether petitioner and the other entities named in the petition are engaged in commercial trade or services?

Petitioner must show that petitioner and each of the other requested qualifying entities are engaged in commercial trad

or services.

Evidence may include, but is not limited to, copies of:

1. The most recent annual report, which describes the state of the U.S entity’s finances.

2. Securities and Exchange Commission Form 10-K.

3. Federal or state income tax returns.

4. Audited financial statements, including balance sheets and statements of income and expenses describing th

U.S. entity’s business operations.

5. Major sales invoices identifying gross sales amounts reported on the income and expenses statement or o

corporate income tax returns.

6. Shipper’s export declaration or shipper’s export declaration for in-transit goods.

7. The U.S. entity’s U.S. Customs and Border Protection forms, Entry Summary and Customs Bond that sho

business activity.

8. Business bank statements that show business activity.

Whether petitioner has an office in the US doing business for one year or more?

Petitioner must show that petitioning entity have an office in the United States that has been doing business for one yea

or more. The date that office was established should be indicated by the petitioner.




3. Federal or state income tax returns.4. Audited financial statements, including balance sheets and statements of income and expenses describing th





7. The U.S. entity’s U.S. Customs and Border Protection forms, Entry Summary and Customs Bond that sho

business activity.


Whether petitioner has three or more domestic and Foreign Branches, Subsidiaries, or Affiliates?

Petitioner must show that petitioning entity has three or more domestic and foreign branches, subsidiaries, or affiliates.




1. Securities and Exchange Commission Form 10-K, which lists all affiliates, subsidiaries, and branch offices, an

percentage of ownership.

2. The most recent annual report, which lists all affiliates, subsidiaries, and branch offices, and percentage o

ownership.

3. Federal or state income tax returns which show the subsidiaries and affiliates included in the blanket petition.

Case Laws:

Matter of Barsai

A business firm which is a branch of a foreign government qualifies as an "affiliate" within the meaning of sectio

101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L), so long as the requisite business affiliatio

exists between the foreign firm and the petitioning United States firm.

Matter of Hughes

(1) For the purpose of section 101(a)(15)(L) of the Act, 8 U.S.C. 1101(a)(15)(L), affiliation exists between two companie

when the petitioning company: Has a 50% financial interest in the foreign company; has de facto control over the foreigcompany; and, the foreign company exists solely. to sell the petitioner's product.

(2) The terms "affiliate" or "affiliation" may be broadly used to describe business entities which have relationships wit

one another based upon both ownership and control. Ownership need not be majority if control exists.

(3) The term "affiliate* is sometimes more specifically used to describe the relationship between two companies whic

have to direct linkage but are directed, controlled, and at least partially owned by the same parent corporation.

(4) The term "subsidiary" is a more specific form of affiliation in which the company 50 described is subordinate to th

control of another.

Other required evidence:

Petitioner must show that petitioner and the other qualified entities have:

1. U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or

2. A U.S. work force of at least 1,000 employees; or

3. At least 10 previous approvals for L-1 managers, executives, or specialized knowledge professionals during th

previous 12 months.

If petitioner submits evidence of previous approvals for specialized knowledge workers, petitioner must also show tha

they are professionals. A specialized knowledge professional is an individual who has specialized knowledge. This

knowledge of petitioner product, service, research, equipment, techniques, management, or other interests, and i

application in international markets. The individual must be a member of the professions, such as architects, engineer

lawyers, physicians, surgeons, and teachers.


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2. The most recent annual report.

3. Tax documents.


5. Petition approval notices for at least 10 L-1 managers, executives, or specialized knowledge professionals durin

the previous 12 months.

6. Evidence to show that the specialized knowledge workers in the Approval Notices petitioner submitted a

professionals.

Requirements for a Blanket Petition Extension

When seeking a blanket approval to be extended indefinitely, petitioner must provide:

1. A copy of the previous blanket approval notice;

2. A statement indicating whether petitioner still meet the criteria for filing a blanket petition;

3. Documentation of any changes in previously approved relationships and with additional qualifying organization

and

4. A list of the beneficiaries admitted under the blanket petition during the preceding three years. The list shou

show: Positions held during that period;

The employing entity; and

The dates of initial admission and final departure of each beneficiary.

Statement:

Petitioner must provide a statement indicating whether petitioner still meet the criteria for a blanket petition.

To satisfy this requirement, Petitioner statement should indicate that the petitioning entity:

1. Have an office in the United States that has been doing business for one year or more;

2. Have three or more domestic and foreign branches, subsidiaries, or affiliates;

3. And any other entities named in the petition are engaged in commercial trade or services; and

4. And the other qualifying organizations have:

5. U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or

6. A U.S. work force of at least 1,000 employees; or

7. At least 10 previous approvals for L-1 managers, executives, or specialized knowledge professionals during th

previous 12 months.

Changes in Relationships:

Petitioner must provide documentation of any changes in previously approved relationships and with additional qualifyin

organizations.




1. The most recent annual report, which lists all affiliates, subsidiaries, and branch offices, and percentage

ownership.

2. A detailed list of owners, which includes the foreign entities’ owners’ names, and what percentages they own.

3. Meeting minutes, which list the stock shareholders and the number and percentage of shares owned.

4. Articles of incorporation, which have been date-stamped, “endorsed-filed” by the appropriate state official.

5. Stock certificates, which have been issued to the present date, clearly indicating the name of each shareholder.

6. A stock ledger, which shows all stock certificates issued to the present date, including total shares of stock sol

and names of shareholders.

7. Proof of stock purchase or capital contribution, such as:

Wire transfer receipts;

Bank statements;

Cancelled checks; or

Deposit receipts.

8. The articles of organization, with the names of members and percentage of membership interests issued by th

entity.

9. The partnership agreement and registration documents with the names of partners.

10. Sole proprietorship registration documents, which indicate the ownership of the entity.

Beneficiaries admitted under the Blanket Petition. Petitioner must provide a list of the beneficiaries admitted under th

blanket petition during the preceding three years. The list should show:

Positions held during that period;

The employing entity; and

The dates of initial admission and final departure of each beneficiary.

Evidence may include, but is not limited to, copies of the following from the preceding three years:

1. Forms I-94 or passports showing the initial arrival and, if appropriate, final departure of the beneficiaries admitte

under the blanket petition.

2. A list of all the beneficiaries admitted under the blanket petition and:

3. The positions they held.

4. The entities who employed them.

5. Their dates of admission.

6. Their dates of final departure (if applicable).

List of Subsidiaries and Affiliates

Petitioner must include a list of all branches, subsidiaries, and affiliates which may request workers under the blank

petition.



Intracompany Transferees: L-1A Manager or Executive

The L-1 classification may be granted to individuals who, within the three years preceding the time of their application f

admission into the United States:

Have been employed abroad continuously for one year by a firm, corporation, or other legal entity;

Seek to enter the United States temporarily to render services to a branch of the same employer, or a paren

affiliate, or subsidiary; and

Will work in a capacity that is managerial or executive, or involves specialized knowledge.

Requirements for a Manager or Executive

To qualify a beneficiary for L-1A classification, petitioner must show that beneficiary:

1. Will be employed in a managerial or executive position in the United States;

2. Has prior education, training, or employment that qualifies him or her to perform the

intended services in the United States; and

3. Has at least one continuous year of full-time employment abroad with a qualifying

organization:

within the three years before application for admission to the United States; and

in a position that is managerial or executive, or involved specialized knowledge.

The fact that the beneficiary owns and manages a business does not necessarily establish eligibility for classification as a

intracompany transferee in a managerial or executive capacity within the meaning of sections 101(a)(15)(L) of the Act.

The regulations require a detailed description of the beneficiary's daily job duties. USCIS will not accept a vague jo

description and speculate as to what the beneficiary actually does on a day-to-day basis as the petitioner's gener

manager.

The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and not at some future dat

The Petitioner indicating that it will hire additional employees in future may not be the basis for approval of L-1A petition

Following issues must be properly addressed when preparing the L-1A petition:

Eligibility of the petitioner: Qualifying Relationship/Ownership and Control/Doing Business

1. Whether the petitioner has submitted sufficient and credible documentation to establish that it has a qualifyin

relationship with the beneficiary's foreign employer?/ whether there is a qualifying relationship between the Uentity and the foreign entity pursuant to 8 C.F.R. § 214.2(1)(1 )(ii)(G)?

2. Whether the Ownership and Control exists between the petitioner and the Qualifying U.S. Entity?

3. Whether Qualifying Foreign Entity is doing Business?



Eligibility of the Beneficiary:

1. Whether the petitioner establishes that the beneficiary will be employed in the United States in a primari

managerial or executive capacity? / Whether the petitioner has sustained its burden of proving that his duties a

"primarily" managerial or executive?

2. Whether beneficiary was employed in Managerial, Executive, or Specialized Knowledge Position Abroad?

3. Whether beneficiary was employed continuously for one year employment abroad?

4. Whether Beneficiary’s Qualifications qualify him/her to perform intended service in the US?

Eligibility of the Petitioner/Employer:

Whether the petitioner has submitted sufficient and credible documentation to establish that it has a qualifyin

relationship with the beneficiary's foreign employer?/ whether there is a qualifying relationship between the U.S. enti

and the foreign entity pursuant to 8 C.F.R. § 214.2(1)(1 )(ii)(G)?

To transfer an employee from a foreign entity to a U.S. entity as an L-1 nonimmigrant, a qualifying relationship must exis

between the two entities. Qualifying relationships may occur between branches of the same employer, or amongst paren

companies, affiliates, or subsidiaries. To show this relationship, petitioner must provide evidence of ownership an

control by one of these parties over the other. For the purposes of L-1 classification, ownership means the leg

possession of an organization. Control means the legal or actual ability to exercise authority or influence over a

organization. Petitioner can usually show ownership and control through company documents.

8 CFR PART 214(l) Qualifying organization means a United States or foreign firm, corporation, or other legal entity which:

( 1 ) Meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidia

specified in paragraph (l)(1)(ii) of this section;

( 2 ) Is or will be doing business (engaging in international trade is not required) as an employer in the United States and i

at least one other country directly or through a parent, branch, affiliate, or subsidiary for the duration of the alien's stay

the United States as an intracompany transferee; an

( 3 ) Otherwise meets the requirements of section 101(a)(15)(L) of the Act.

The regulation and case law confirm that ownership and control are the factors that must be examined in determinin

whether a qualifying relationship exists between United States and foreign entities for purposes of this visa classificatio

Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Medical Systems, Inc

19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982).

In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of the assets of a

entity with full power and authority to control; control means the direct or indirect legal right and authority to direct th

establishment, management, and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. at 595


1. The most recent Securities and Exchange Commission Form 10-K, which lists all affiliates, subsidiaries, and branc

offices, and percentage of ownership.

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-17197/0-0-0-18918.html






ownership.

3. A detailed list of owners, which includes the foreign entity’s owners’ names, and what percentages they own.


5. Articles of incorporation and bylaws, including all amendments.


7. A stock ledger, which shows all stock certificates issued to the present date, including total shares of stock sold

and names of shareholders.8. Proof of stock purchase.

9. The U.S. entity’s most recent federal income tax returns, which demonstrate the qualifying relationship to th

foreign entity.

10. The articles of organization, with the names of members and percentage of membership interests, issued by th

foreign entity.

11. The partnership agreement and registration documents, with the names of partners and the limits of the

liabilities.

12. The sole proprietorship registration documents, which indicate the ownership of the foreign entity.

13. Evidence that the U.S. entity is authorized to operate as a branch office in (foreign country) by the appropriat

(foreign nationality) agency.

Whether the Ownership and Control exists between the petitioner and the Qualifying U.S. Entity?





ownership.3. Meeting minutes, which list the stock shareholders and the number and percentage of shares owned.

4. Articles of Incorporation, which have been date-stamped “endorsed-filed” by the appropriate state official.




7. Proof of stock purchase or capital contribution, such as the following:

wire transfer receipts;

bank statements;

cancelled checks; or

deposit receipts.8. The U.S. entity’s most recent federal income tax returns, which demonstrate qualifying relationship to the foreig

entity.

9. The articles of organization, with the names of members and percentage of membership interests issued by the

entity.





12. Evidence that the foreign entity has been authorized to operate as a branch office in the state of [STATE] by th

appropriate state agency.

13. The franchise purchase agreement, and documentation as evidence of the right and authority to direct th

management and operation of the U.S. entity.

Case Laws:

Matter of Church Scientology International

Ownership and control are the factors for establishing a qualifying relationship between entities for purposes of "L-1

classification. Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full powe

and authority to control. Control means the direct or indirect legal right and authority to direct the establishmen

management, and operations of an entity.

Ownership and control are the factors for establishing a qualifying relationship between United States and foreign entitie

for purposes of "L-1" classification. See e.g. Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Comm.1986

Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982); see also Matter of Tassel, Inc., 17 I&N Dec. 631 (Acting Assoc. Comm

1981).

While an entity is usually in the form of a corporation, partnership, or sole proprietorship and is either a profit o

nonprofit organization, the nature and form of the entity are not relevant. Johnson-Laird, Inc. v. INS, 537 F. Supp. 52 (D

Or. 1981).

Qualifying foreign entity is doing Business

To qualify for L-1 classification, petitioner must be doing business in the United States and at least one other country. Th

may be directly or through a qualifying organization, for the duration of the beneficiary’s stay in this classification.


The most recent annual report, which describes the state of the foreign entity’s finances.

Foreign tax documents.

Audited financial statements.

Purchase orders.

Invoices.

Bills of lading.

U.S. Customs documentation.

Whether Qualifying Foreign Entity is doing Business?



2. Securities and Exchange Commission, Form 10-K.






4. Audited financial statements, including balance sheets and statements of income and expenses describing th





7. The U.S. entity’s U.S. Customs and Border Protection forms, Entry Summary and Customs Bond that show

business activity.


Eligibility of the Beneficiary:

Whether the petitioner establishes that the beneficiary will be employed in the United States in a primarily manageria

or executive capacity? / Whether the petitioner has sustained its burden of proving that his duties are "primarily

managerial or executive?

The proposed position in the United States must be in a managerial or executive capacity. Petitioner must show this eve

if evidence indicates that the beneficiary performed in an executive, managerial, or specialized knowledge capacit

abroad.

Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 1101(a)(44)(A), defines the term "managerial capacity" as an assignment withi

an organization in which the employee primarily:

1. manages the organization, or a department, subdivision, function, or component of the organization;

2. supervises and controls the work of other supervisory, professional, or managerial employees, or manages a

essential function within the organization, or a department or subdivision of the organization;

3. if another employee or other employees are directly supervised, has the authority to hire and fire or recommen

those as well as other personnel actions (such as promotion and leave authorization), or if no other employee i

directly supervised, functions at a senior level within the organizational hierarchy or with respect to the functiomanaged; and

4. exercises discretion over the day to day operations of the activity or function for which the employee ha

authority. A first line supervisor is not considered to be acting in a managerial capacity merely by virtue of th

supervisor's supervisory duties unless the employees supervised are professional.

Section 10 l(a)(44)(B) of the Act, 8 U.S.C. 9 1 101 (a)(44)(B), defines the term "executive capacity" as an assignment with

an organization in which the employee primarily:

(i) directs the management of the organization or a major component or function of the organization;

(ii) establishes the goals and policies of the organization, component, or function;

(iii) exercises wide latitude in discretionary decision making; and

(iv) receives only general supervision or direction from higher level executives, the board of directors, o

stockholders of the organization.

Petitioner may provide following evidence to address the above issue:

For beneficiaries who will enter United States in order to render services in a mana erial osition:



1. A letter from an authorized representative of the U.S. entity stating the beneficiary’s expected manageri

decisions. The letter should describe the beneficiary’s typical managerial duties, and the percentage of time to b

spent on each. In addition, the letter should address:

How the beneficiary will manage the organization, department, subdivision, function, or component o

the organization;

How the beneficiary will supervise and control the work of other supervisory, professional, or manager

employees, or manage an essential function, department or subdivision of the organization;

Whether the beneficiary will have authority to hire and fire or recommend similar personnel actions (sucas promotion and leave authorization) if other employees will be directly supervised (or if no oth

employees will be directly supervised, how the beneficiary will function at a senior level within th

organizational hierarchy or with respect to the managed function); and

How the beneficiary will make decisions on daily operations of the activity or function under his or h

authority. If the beneficiary will be a first-line supervisor, submit evidence showing the supervise

employees will be professionals.

For beneficiaries who will enter United States in order to render services in an executive position:

1. A letter from an authorized representative of the U.S. entity describing the beneficiary’s expected executi

decisions. The letter should describe the beneficiary’s typical executive duties, and the percentage of time to b

spent on each. In addition, the letter should address:

How the beneficiary will direct the management of the organization, or a major component or functio

of the organization;

How the beneficiary will establish the goals and policies of the organization, component, or function;

How the beneficiary will exercise wide latitude in discretionary decision-making; and

Whether the beneficiary will receive only general supervision or direction from higher level executive

the board of directors, or stockholders.

2. An organizational chart or diagram, showing the U.S. entity’s organizational structure and staffing levels. List a

employees in the beneficiary’s immediate division, department, or team by name, job title, summary of dutie

education level, and salary. Clearly identify the beneficiary’s position in the chart.

3. Copies of the U.S. entity’s State Quarterly Wage Reports for the [1 st , 2 nd , 3 rd and 4 th quarter of year] th

were accepted by the State of state for all the organization’s current organizational structure and staffing leve

The forms should include the names, salaries, and number of weeks worked for all employees.

If employees listed on the Organizational Chart are not listed on the State Quarterly Wage Reports, petition

need to explain the reasons.

4. Copies of the U.S. entity’s payroll summary, and Forms W-2, W-3, and 1099-MISC evidencing wages paid to a

employees under the beneficiary’s direction.

Case laws:

A visa petition may not be approved based on speculation of future eligibility or after the petitioner or beneficia

becomes eligible under a new set of facts. See Matter of Michelin TireCorp., 17 I. & N. Dec. 248, 249 (BIA 1978); In th

Matter of Katigbak, 14 I & N Decisions 45 (1971);, Olamide Olorunniyo Ore v. Clinton, 675 F. Supp. 2d 217 - Dist. Court, D

Massachusetts 2009

http://scholar.google.co.in/scholar_case?about=3477625968072968092&q=of+Katigbak,+14+I%26N&hl=en&as_sdt=2,5






In reviewing the relevance of the number of employees a petitioner has, however, federal courts have generally agree

that USCIS "may properly consider an organization's small size as one factor in assessing whether its operations ar

substantial enough to support a manager." Family Inc. v. US. Citizenship and Immigration Services 469 F. 3d 1313, 131

(9th Cir. 2006)

It is appropriate for USCIS to consider the size of the petitioning company in conjunction with other relevant factors, suc

as a company's small personnel size, the absence of employees who would perform the non-managerial or non-executiv

operations of the company, or a "shell company" that does not conduct business in a regular and continuous manner. Se

e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C.2001).

The definitions of executive and managerial capacity each have two parts. First, the petitioner must show that th

beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner must show

that the beneficiary primarily performs these specified responsibilities and does not spend a majority of his or her time o

day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991).

An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO eve

if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises v. Unite

States, 229 F. Supp. 2d 1025,1043 (ED. Cal. 2001), aft'd 345 F. 3d 683 (9'h Cir. 2003).

The expectation is that the U.S. business supports an executive or managerial position on extension. The prior approva

do not preclude USCIS from denying an extension of the original visa based on reassessment of petitioner's qualification

Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004).

Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating the languag

of the statute or regulations does not satisfy the petitioner's burden of proof. F edin Bros. Co., Ltd. v. Sava, 724 F. Supp

1103, 1108 (E.D.N.Y. 1989).

The petitioner bears the burden of documenting what portion of the beneficiary'S duties will be managerial or executiv

and what proportion will be non-managerial or nonexecutive. Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Ci

1991).

An employee who "primarily" performs the tasks necessary to produce a product or provide a service is not considered t

be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requirin

that one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientolog

International, 19 I & N Dec. at 604.

Specialized knowledge must be relevant to the business itself and directly concerned with the expansion of commerce o

it must allow a business to become competitive in overseas markets. Matter of Michelin Tire Corporation, 17 I&N Dec. 24

(R.C. 1978)

In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the subordinatpositions require a baccalaureate degree as a minimum for entry into the field of endeavor. Section 10 1 (a)(32) of the Ac

8 U.S.C. 5 1 10 1 (a)(32), states that "[the term profession shall include but not be limited to architects, engineers, lawyer

physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries." The term

"profession" contemplates knowledge or learning, not merely skill, of an advanced type in a given field gained by

prolonged course of specialized instruction and study of at least baccalaureate level, which is a realistic prerequisite t

entry into the particular field of endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 3

(R.C. 1968); Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966).



Whether beneficiary was employed in Managerial, Executive, or Specialized Knowledge Position Abroad? / Whethe

the petitioner established that the beneficiary has been employed by the foreign entity in a primarily managerial o

executive capacity?

The beneficiary must have at least one continuous year of full-time employment abroad with a qualifying organizatio

within the three years before his or her application for admission to the United States. The position must have bee

managerial or executive, or involved specialized knowledge.

Evidence may include, but is not limited to:

1. Copies of the beneficiary’s training, pay, or other personnel records. These should show the beneficiary wa

employed in a managerial, executive, or specialized knowledge position abroad.

2. An organizational chart or diagram, showing the foreign entity’s organizational structure and staffing levels. List a


education level, and salary. Identify the beneficiary’s position in the chart.

For beneficiaries who will enter United States in order to render services in a managerial position:

1. A letter from an authorized representative of the foreign entity describing the beneficiary’s managerial decision

made on their behalf. The letter should describe the beneficiary’s typical managerial duties, and the percentage otime spent on each. In addition, the letter should address the following:

How the beneficiary managed the organization, department, subdivision, function, or component of th

organization he or she oversaw;

How the beneficiary supervised and controlled the work of other supervisory, professional, or manageria

employees, or managed an essential function, department, or subdivision of the organization;

Whether the beneficiary had the authority to hire and fire or recommend similar personnel actions (such a

promotion and leave authorization) if other employees were directly supervised (or if no other employe

was directly supervised, how the beneficiary functioned at a senior level within the organizational hierarch

or with respect to the managed function); and

How the beneficiary made decisions on daily operations of the activity or function under his or he

authority. If the beneficiary was a first-line supervisor, submit evidence showing the supervised employee

were professionals.

Note: A professional is an individual who is a member of the professions, such as

architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or

secondary schools, colleges, academies, or seminaries.


1. A letter from an authorized representative of the foreign entity describing the beneficiary’s executive decision

made on their behalf. The letter should describe the beneficiary’s typical executive duties, and the percentage otime spent on each. In addition, the letter should address:

How the beneficiary directed the management of the organization, or a major component or function o

the organization;

How the beneficiary established the goals and policies of the organization, component, or function;

How the beneficiary exercised wide latitude in discretionary decision-making; and

Whether the beneficiary received only general supervision or direction from higher level executives, th

board of directors, or stockholders.



If beneficiary’s employment abroad involved specialized knowledge:

1. A letter from an authorized representative of the foreign entity describing the beneficiary’s specialized knowledg

duties abroad. The letter should also describe the percentage of time spent on each duty. In addition, the lette

should:

Explain how the knowledge for the position is different than that for similar positions in the industry;

State the product, service, tool, research, equipment, process, or procedure the beneficiary uses tha

involves specialized knowledge;

Describe how the knowledge involved in the position is “advanced” within beneficiary organization’

processes and procedures;

Explain how petitioner equipment, system, product, technique, or service is “special,” and how it i

applied in the international marketplace;

Explain why someone else in this field cannot perform these duties;

State the minimum time required to obtain this knowledge, including training and actual experience

accrued after the completion of training; and

Explain how the beneficiary role in significant assignments has enhanced the employer’s productivity

competitiveness, image, or financial position.

Whether beneficiary was employed continuously for one year employment abroad?

Petitioner must show the beneficiary has at least one continuous year of full-time employment abroad with a qualifying

organization. This employment must have occurred within the three years before his or her application for admission to

the United States.


1. Copies of the beneficiary’s pay records.

2. Copies of the beneficiary’s personnel records.3. Copies of the beneficiary’s training records.

4. A letter from the beneficiary’s supervisor(s) describing the beneficiary’s experience with the foreign entity.

5. A letter from the foreign entity’s Human Resource Department that discusses the beneficiary’s work history there

Case Laws:

Matter of Bocris

An alien beneficiary who, immediately preceding the filing of the visa petition, has been employed for more than one yea

abroad as an executive of the petitioner's French affiliate, and whose transfer to the United States is being sought fo

employment as an executive on a temporary basis, is eligible for classification as a nonimmigrant intra-compantransferee under section 101 (a) (15) (L) of the Immigration and Nationality Act, as amended, notwithstanding he is the

beneficiary of an approved sixth preference visa petition.





Matter of Michelin Tire Corporation

In order to be eligible for nonimmigrant classification under section 101(a)(15)(L) of the Immigration and Nationality Act, 8

U.S.C. 1101(a)(15)(L), the beneficiary must have been employed continuously fort year by the petitioner at the time the

petition is filed with the Service. Having worked for the company for only 9 months, beneficiary failed to meet this time

requirement.

Matter of Thompson

(1) Dissolution of a foreign business or cessation of foreign business activity by the petitioner would not preclude an alie

beneficiary from being accorded status as an intracompany transferee since section 101(a)(15)(L) of the Immigration an

Nationality Act, 8 U.S.C. 1101(a)(15)(1;), only requires the employment of the beneficiary outside of the United States b

the foreign firm or other legal entity for one year prior to entry.

(2) The existence of a foreign employer or a foreign office of the United States employer is not required. Matter o

Chortler, 16 1&N Dee. Z.154 (B1A 1977).

In Matter of Continental Grain, 14 UN Dec. 140 (D.D. 1972), holds that a beneficiary's one year qualifying experience with

the petitioner must be wholly outside the United States, except for brief trips to the United States to attend conferences

training sessions, or similar functions.

Whether Beneficiary’s Qualifications qualify him/her to perform intended service in the US?

The beneficiary’s prior education, training, and employment abroad must qualify him or her to perform the intended

services in the United States. However, the work in the United States need not be the same work which the beneficiary

performed abroad.


1. A letter from an authorized representative of the foreign entity describing the beneficiary’s employment. Th

letter should contain:

The beneficiary’s position title abroad and a description of all of the beneficiary’s duties for the foreig

employer;

An outline of all of the beneficiary’s positions while employed with the foreign entity;

Position descriptions and employment dates at any other affiliated companies abroad where th

beneficiary worked; and

An explanation of how the beneficiary’s prior education, training, and employment qualify him or her to

perform the intended services in the United States, even if the work performed abroad is not the sameas that which will be performed in the United States.

2. Copies of the beneficiary’s training, pay, or other personnel records. These should show the beneficiary wa


3. An explanation and evidence that show how the beneficiary’s prior education, training, and employment qualif

him or her to perform the intended services in the United States, even if the work performed abroad is not the

same as that which will be performed in the United States.

4. Copies of the beneficiary’s transcripts.







Intracompany Transferees: L-1A New Office (First Year)

The L-1 classification may be granted to individuals who, within three years preceding the time of his or her application fo

admission into the United States:

1. Have been employed abroad continuously for one year by a firm, corporation, or other legal entity;

2. Seek to enter the United States temporarily to render services to a branch of the same employer, or a parent

affiliate, or subsidiary; and

3. Will work in a capacity that is managerial or executive, or involves specialized knowledge.

For the beneficiary to be a manager or executive who will open or be employed in a new office in the United States

petitioner must show that:

1. Sufficient physical premises to house the beneficiary have been secured;

2. A qualifying relationship between the U.S. entity and foreign entity exists;

3. The beneficiary has been employed in an executive or managerial capacity for one continuous year in the thre

year period before the time of his or her application for admission to the United States;

4. The proposed employment involves executive or managerial authority over the new office;and

5. The proposed U.S. office will support an executive or managerial position within one year.

Matter of Chartier

An alien may be admitted into the United States as an intra-company transferee under section 101(a)(15)(L) of the Ac

even though the petitioning employer has no subsidiary or other legal entity abroad.

The following issues must be properly addressed when preparing L-1A for New Office:

1. Whether Sufficient Physical Premises has been secured to house the beneficiary? /whether the petitione

established that it has secured sufficient physical premises to house the new office?/ whether the petitione

intends to Secure physical premises for the one year required by regulations?/ whether the petitioner intends to

occupy the office to operate the intended business?

2. Whether the Qualifying Relationship exists between the two entities?

3. Whether Beneficiary has One Year Employment Abroad?

4. Whether beneficiary was employed in Managerial, Executive, or Specialized Knowledge Position Abroad?

Whether Sufficient Physical Premises has been secured to house the beneficiary? /whether the petitioner establishe

that it has secured sufficient physical premises to house the new office?/ whether the petitioner intends to Secure

physical premises for the one year required by regulations?/ whether the petitioner intends to occupy the office to

operate the intended business?

Petitioner must show that sufficient physical premises to house the beneficiary have been secured.






1. A complete copy of the U.S. entity’s lease, signed and dated by both the lessor and the lessee. This should indicat

the total square footage of the premises, including all office, production, manufacturing, and warehouse spaces.

2. A statement defining the U.S. worksite as a sales office, representative agency, distributorship, etc. This shoul

explain the type of building the U.S. entity is occupying, such as an office suite, factory, warehouse, apartmen

house, etc.

3. A letter from the owner or property management company confirming the property owner allows a sublease t

the U.S. entity (if applicable). The letter should also indicate that the U.S. entity is actually occupying anmaintaining the sub-lease agreement.

4. A copy of the contract between the owner and the lessee allowing sub-lease of the space, if applicable.

5. Color photos of the U.S. entity’s premises. We recommend that photos show the inside and outside of all factory

production, warehouse, and office spaces. Equipment, merchandise, products and employees should be visible

Also, include any company logos, emblems or signs displayed on and in buildings and on products.

6. Copies of escrow documents or evidence of title, if the U.S. premises are owned or being purchased. Includ

information about the square footage of the premises.

7. Petitioner also may provide business plan containing information regarding the start-up costs and initial operatin

expenses associated with the new office, such that it could be determined whether it has sufficient funds to carr

out its plans for the first year of operation.

Matter of Leblanc

The statute does not require that the beneficiary of a visa petition to accord nonimmigrant classification as an intra-

company transferee under section 101(a) (15) (L) of the Immigration and Nationality Act, as amended, be coming to an

existing office, branch or other establishment of his employer in order that the petition may be approved. While there

may be a question as to whether or not the petitioning company actually has an established and existing affiliate in the

United States at this time, where, as the record in the instant case shows, the petitioner has acquired physical premises

necessary to its functions here which evidences the bona fides of its intended operation in this country, the petition may

be approved if otherwise approvable.

Whether the Qualifying Relationship exists between the two entities?




control by one of these parties over the other.





ownership.











8. Proof of stock purchase

9. Petitioner’s most recent income tax returns, which demonstrate the qualifying relationship to the foreign entity.

10. The articles of organization, with the names of members and percentage of membership interests, issued by the

foreign entity.

11. The partnership agreement and registration documents, with the names of partners and the limits of theiliabilities.


13. Evidence that the U.S. entity is authorized to operate as a branch office in (foreign country) by the appropriate


Ownership and Control of the Qualifying U.S. Entity


1. The most recent Securities and Exchange Commission Form 10-K, which lists all affiliates, subsidiaries, and branch


2. The most recent annual report, which lists all affiliates, subsidiaries, and branch offices, and percentage of

ownership.






7. Proof of stock purchase or capital contribution, such as the following: wire transfer receipts;

bank statements;


deposit receipts.

8. Petitioner’s most recent federal income tax returns, which demonstrate qualifying relationship to the foreign

entity.

9. The articles of organization, with the names of members and percentage of membership interests issued by the

entity.


11. Sole proprietorship registration documents, which indicate the ownership of the entity.12. Evidence that the foreign entity has been authorized to operate as a branch office in the state of state by the


13. The franchise purchase agreement, and documentation as evidence of the right and authority to direct the




Whether Beneficiary has One Year Employment Abroad?

Petitioner must show that the beneficiary has at least one continuous year of full-time employment abroad with

qualifying organization. This employment must have occurred within the three years before his or her application f

admission to the United States.


1. Copies of the benef iciary’s pay records.

2. Copies of the beneficiary’s personnel records.

3. Copies of the beneficiary’s training records.

4. A letter from the beneficiary’s supervisor(s) describing the beneficiary’s experience with the foreign entity.

5. A letter from the foreign entity’s Human Resource Department that discusses the beneficiary’s work history the

Whether beneficiary was employed in Managerial, Executive, or Specialized Knowledge Position Abroad?

The beneficiary must have at least one continuous year of full-time employment abroad with a qualifying organizatio

within the three years before his or her application for admission to the United States. The position must have bee

managerial or executive, or involved specialized knowledge.


1. Copies of the beneficiary’s training, pay, or other personnel records. These should show the beneficiary w


2. An organizational chart or diagram, showing the f oreign entity’s organizational structure and staffing levels. List


education level, and salary. Identify the beneficiary’s position in the chart.

For beneficiaries who will enter United States in order to render services in a managerial position:

1. A letter from an authorized representative of the foreign entity describing the beneficiary’s managerial decisio

made on their behalf. The letter should describe the beneficiary’s typical managerial duties, and the percentage

time spent on each. In addition, the letter should address the following:

How the beneficiary managed the organization, department, subdivision, function, or component of th

organization he or she oversaw;

How the beneficiary supervised and controlled the work of other supervisory, professional, or manager

employees, or managed an essential function, department, or subdivision of the organization;

Whether the beneficiary had the authority to hire and fire or recommend similar personnel actions (such

promotion and leave authorization) if other employees were directly supervised (or if no other employ

was directly supervised, how the beneficiary functioned at a senior level within the organizational hierarc

or with respect to the managed function); and

How the beneficiary made decisions on daily operations of the activity or function under his or h

authority. If the beneficiary was a first-line supervisor, submit evidence showing the supervised employe

were professionals.

Note: A professional is an individual who is a member of the professions, such as

architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or

secondary schools, colleges, academies, or seminaries.




1. A letter from an authorized representative of the foreign entity describing the beneficiary’s executive decision

made on their behalf. The letter should describe the beneficiary’s typical executive duties, and the percentage

time spent on each. In addition, the letter should address:

How the beneficiary directed the management of the organization, or a major component or function

the organization;

How the beneficiary established the goals and policies of the organization, component, or function; How the beneficiary exercised wide latitude in discretionary decision-making; and

Whether the beneficiary received only general supervision or direction from higher level executives, th

board of directors, or stockholders.

One Year Requirement:

Petitioner must show the new office will support an executive or managerial position within one year of petition approva

Petitioner must show this with evidence regarding:

1. The proposed nature of the office describing the entity, its organizational structure, and its financial goals;

2. The size of the U.S. investment and the financial ability of the foreign entity to pay the beneficiary and to beg

doing business in the United States; and

3. The organizational structure of the foreign entity.


Information regarding the proposed nature of the new office, describing the scope of the entity, its organization

structure, and its financial goals:

1.

An original letter from the foreign entity explaining the need for the new office in the United States. The letteshould indicate the proposed number of employees and types of positions they will hold; the amount of the U.S

investment; and the financial ability of the foreign company to pay the beneficiary and commence doing busine

in the United States. In addition the letter should explain how the proposed business venture will, within on

year, support a managerial or executive capacity position.

2. A copy of the feasibility study by which the foreign parent company determined the need for, and the probabilit

that the proposed United States company would support, a manager or executive within one year of approval

the petition.

3. A copy of the business plan for commencing the start-up of the new office in the United States. The plan shoul

include a timetable for each proposed action for the one year starting with the date of filing the Form I-129.

4. Minutes of the meetings for the foreign entity to illustrate the discussions to form the U.S. entity.5. A copy of the proposed United States line and block organizational chart, showing ALL hierarchy and staffin

levels. List all proposed employees by name, job title, summary of duties, educational level, and salary.

Information regarding the size of the U.S. investment and the financial ability of the foreign entity to remunerate th

beneficiary and commence doing business in the United States:



6. Proof of capital contribution to the U.S. entity, such as the following:

Initial wire transfers;

Cancelled checks;

Deposit receipts; or

Bank statements originating in the United States detailing monetary amounts for the capital contribution

7. Documents to show the foreign entity has paid for services to commence business at the United States locatio

such as utilities, payroll, legal and accounting fees, lease agreement, etc.

8. Foreign entity’s most recent filing of tax documents.9. Foreign entity’s audited balance sheets and statements of income and expenses showing the foreign entity

financial position.

10. Foreign entity’s most recent annual report, which describes the state of the foreign entity’s finances.

11. Foreign entity’s business bank statements for the last three months.

12. U.S. entity’s business bank statements, if available.

13. Current letters from the U.S. entity’s bank indicating when the account was opened, current status, and averag

balance. Have the bank include a list of names for all persons authorized to access all accounts and their affiliatio

to the foreign or U.S. entity.

14. U.S. entity’s most recent federal income tax return, if applicable.

Information regarding the organizational structure of the foreign entity:

15. A copy of the foreign entity’s organizational chart/diagram, showing ALL the organization’s organization

hierarchy and staffing levels.

Beneficiary is Owner or Major Stockholder of Company

If the beneficiary is an owner or major stockholder of the company, he/she must provide additional evidence. Specificall

petitioner must show:

1. The beneficiary’s service will be used for a temporary period; and

2. The beneficiary will be transferred to an assignment abroad upon completion of the temporary services in th

United States.


1. A contract showing the assignment at the foreign entity and expected date of return.

2. A statement by the U.S. entity explaining the plan to replace the beneficiary’s services upon return to the foreig

entity.

3. A statement by the representative of the foreign entity. The statement may include:

An explanation regarding how the beneficiary’s duties will be covered during his period away;

The expected return date of the beneficiary to the foreign entity; and

The position the beneficiary will return to.



A corporation is a separate and distinct legal entity from its owners or stockholders. A corporation, even if it is owned an

operated by a single person, may hire that person, and the parties will be in an employer-employee relationship. Se

Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm

1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980).

Matter of Isovic

(1) A petitioner seeking to classify an alien under section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C

1101(a)(15)(L), must demonstrate the intention to employ the beneficiary in the United States for only a temporarperiod.

(2) While a petitioner for an L classification generally need submit only a simple statement of the facts and a listing o

dates to demonstrate the intent to employ the beneficiary in the United Staten temporarily, where the beneficiary in th

owner/major stockholder of the petitioning company, a greater degree of proof is required.

Intracompany Transferee: L-1A New Office – Extension after the First Year

General Requirements for New Office Extension

To extend an L-1 nonimmigrant who opened a new U.S. office, petitioner must file a new petition and submit:

1. Evidence that the U.S. and foreign entities are still qualifying organizations;

2. Evidence that the U.S. entity has been doing business in the previous year;

3. A statement of the beneficiary’s duties for the previous year and in the future under the extended petition (t

establish qualifying U.S. employment);

4. A statement describing the new operation’s staffing, including the number of employees and types of position

accompanied by evidence of wages paid to employees; and

5. Evidence of the financial status of the U.S. operation.

Qualifying Relationship – Ownership and Control




control by one of these parties over the other. For the purposes of L-1 classification, ownership means the leg

possession of an organization.





ownership.



http://www.uscis.gov/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2006/JUN122006_19D2101.pdf



http://www.uscis.gov/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2006/JUN122006_19D2101.pdf







8. Proof of stock purchase or capital contribution in exchange for ownership, such as the following:

wire transfer receipts;

bank statements;

cancelled checks; deposit receipts; or

evidence of the receipt of goods and their value..

9. Petitioning entity’s most recent income tax returns, which demonstrate the qualifying relationship to the foreig

entity.

10. The articles of organization, with the names of members and percentage of membership interests, issued by th

foreign entity.

11. The partnership agreement and registration documents, with the names of partners and the limits of the

liabilities.


13. Evidence that the U.S. entity is authorized to operate as a branch office in (foreign country) by the appropriat



management and operation of the foreign entity.

Ownership and Control of the Qualifying U.S. Entity


1. The most recent Securities and Exchange Commission Form 10-K, which lists all affiliates, subsidiaries, and brancoffices, and percentage of ownership.

2. The most recent annual report, which lists all affiliates, subsidiaries, and branch offices, and percentage

ownership.






7. Proof of stock purchase or capital contribution, such as the following:

wire transfer receipts; bank statements;


deposit receipts.

8. The U.S. entity’s most recent federal income tax returns, which demonstrate qualifying relationship to the foreig

entity.

9. The articles of organization, with the names of members and percentage of membership interests issued by th

entity.





12. Evidence that the foreign entity has been authorized to operate as a branch office in the state of [STATE] by the




Foreign Entity Doing Business:

Petitioner must show that a qualifying foreign entity continues doing business in at least one other country. The foreign

entity does not have to be the same entity that employed the beneficiary abroad. However, if the foreign entity whic

established a qualifying relationship to the U.S. entity for the new office petition is no longer doing business, petitione

must establish a qualifying relationship between the U.S. entity and a new foreign entity.


a. The foreign entity’s most recent annual report.

b. The foreign entity's most recent filing of tax documents.c. The foreign entity’s audited balance sheets and statements of income and expenses for the past year.

d. Purchase orders.

e. Invoices.

f. Bills of lading.

g. U.S. Customs documentation.

U.S. Entity Doing Business:

Petitioner must show the U.S. entity has been doing business for the previous year.


a. The most recent annual report, which describes the state of the U.S entity’s finances.

b. Securities and Exchange Commission, Form 10-K.

c. Federal or state income tax returns.

d. Audited financial statements, including balance sheets and statements of income and expenses describing

the U.S. entity’s business operations.

e. Major sales invoices identifying gross sales amounts reported on the income and expenses statement o

on corporate income tax returns.

f. Shipper’s export declaration or shipper’s export declaration for in-transit goods.

g. The U.S. entity’s U.S. Customs and Border Protection forms, Entry Summary and Customs Bond that show

business activity.

h. Business bank statements that show business activity.

i. Vendor contracts



Beneficiary’s Duties:

Petitioner must submit a statement describing the beneficiary’s duties for the previous year, and those to be performe

under the extended petition.

Statements should describe the beneficiary’s duties for the previous year, and those to be performed under the extende

petition. Petitioner may also submit any evidence in support of the statement that petitioner deem appropriate to satisf

this requirement.

New Operation Staffing:

Petitioner must submit a statement describing the staffing of the new operation. This should include:

a. The number of employees;

b. Types of positions; and

c. Evidence of wages petitioner paid to employees while the beneficiary is employed in a managerial o

executive capacity.


a. A detailed statement listing the number of employees and the types of positions.

b. The U.S. entity’s Quarterly Wage Reports for all employees for the last four quarters that were accepte

by the state. The forms should include the names, wages paid, and number of weeks worked for a

employees.

c. The U.S. entity’s payroll summary, W-2’s and W-3’s showing wages paid to employees in the past year.

d. A current organizational chart or diagram, showing the U.S. entity’s organizational structure and staffin

levels. List all employees in the beneficiary’s immediate division, department, or team by name, job titl

summary of duties, and salary. Clearly identify the beneficiary’s position in the chart. If applicable

indicate the number of employees he or she manages.

Financial Status of the United States Operation:

Petitioner must show the financial status of the U.S. operation.


a. Federal or state income tax returns,

b. Audited financial statements, including balance sheet and statements of income and expenses describin

normal business operations for the past year.

c. Business bank statements that show business activity.



Other issues should be addressed under L-1A classification may include:

Whether the beneficiary manages professional employees?

Whether its operations are substantial enough to support a manager?

Whether the description of the beneficiary's duties represents a credible perspective of the beneficiary's role within th

organizational hierarchy?

Whether the petitioner established that the beneficiary will be employed in a primarily managerial or executive capacit

under the extended petition?

Whether the petitioner established that the beneficiary would be employed in the United States in a primarily manager

or executive capacity within one year of approval of the petition?

Whether the petitioner established that the beneficiary possesses specialized knowledge and that he has been and will b

employed in a capacity requiring specialized knowledge?

Whether the petitioner established that the beneficiary would be employed in the United States in a primarily manager

or executive capacity within one year?

Whether the petitioner provided sufficient evidence of the size of the financial investment in the new United States offic

as required by 8 C.F.R. 3 214.2(1)(3)(v)(C)(2)?

Whether the beneficiary would be supervising a staff of bona fide managers and supervisors, or whether the beneficiary

subordinates would be performing the day- to-day tasks necessary for the successful operation of the business?

Whether the company employs sufficient staff to relieve the beneficiary from primarily participating in non-qualifyin

duties?

Whether the beneficiary or his subordinate personnel require bachelor's degrees, such that they could be considere

professionals?

Whether the petitioner submitted sufficient evidence to establish that it had secured sufficient physical premises to hous

the new business at the time the Form 1-1 29 was filed?

Whether the petitioner and the beneficiary's foreign employers share common ownership and control such that the

could be deemed to have a qualifying relationship?

Whether such staff would be hired during the first year of operations?

Issues under L-1B Classification:

Whether or not the beneficiary actually possesses specialized knowledge?

Whether the petitioner established that the beneficiary possesses specialized knowledge and that he has been and will b

employed in a capacity requiring specialized knowledge?

Whether the beneficiary's knowledge of and experience with the petitioner's proprietary tools, processes an

methodologies alone constitutes specialized knowledge?